Why Obama Won’t Regulate Hollywood

For the last two weeks, Vice-President Joe Biden has been working with Attorney General Eric Holder, Secretary of Health and Human Services Kathleen Sebelius and others to formulate policy recommendations on curbing gun violence in America. Biden will deliver those recommendations to President Obama today, and while no one knows precisely what they will be, it has become clear that they wil feature a combination of measures that strengthen gun control laws, improve our mental health system, and do something (but very little) about graphic violence in movies and video games.

Why so little on the entertainment industry? Well, first and foremost, there is very little they can do. The threat of government action has pushed Hollywood to self-regulate twice before, but things are quite different today. In the 1920s, Hollywood was under heavy scrutiny for its culture of immorality, crystallized in the minds of the public by the heavily-publicized trial of silent film actor Fatty Arbuckle for manslaughter. In response to the outcry from concerned citizens, legislators in 37 states introduced more than 100 bills to set up state film censorship boards. Hollywood was getting nervous, so the Motion Pictures Producers and Distributors of America hired William Hays, a former postmaster general, and paid him $100,000 per year to create and implement the Production Code, a list of subjects that studios were urged to avoid. The list consisted of items labeled either “Don’t” or “Be Careful,” with the former applying to subjects that should be avoided at all costs (profanity, childbirth, miscegenation) and the latter to those that could be depicted but only in a sensitive and careful fashion (the use of the flag, sympathy for criminals, sedition). The list gets pretty weird and is worth a full look.


The Production Code set the rules, but it had no enforcement mechanism. There was no incentive for the studios to adhere to the code, and the immorality of the movies continued to be a source of controversy. In 1933, the Catholic Church created the League of Decency, which had the sole mission of identifying films with objectionable content so that Catholics could avoid them. They created their own rating system (more than 30 years before the MPAA had the same idea), and got more than 10 million Catholics to sign a pledge that they would avoid immoral films. In response to the League and the lack of enforcement by Hollywood, Congress began preparing a bipartisan bill to give them regulatory authority over the movie industry. So once again, Hollywood chose self-regulation over government regulation, and they strengthened the Production Code with a system of fines.

While the era of the Production Code offers two examples of how the threat of legislation has been used to pressure Hollywood to self-regulate, such a threat would have significantly less teeth today. Movies have been defined as free speech protected under the First Amendment since 1952, when the United States Supreme Court overturned the censorship of the Federico Fellini short film The Miracle by the Commissioner of Education of New York. Earlier this year, the Supreme Court added video games to the list of protected forms of speech. So the threat of government of regulation is recognized as just that – a threat – and not taken seriously.

This is probably why Biden had only perfunctory meetings with the video game and film industries last week. His meeting with industry leaders from film and cable TV last Friday lasted a mere two hours, which indicates they will not be heavily featured in his policy recommendations. Most likely, Obama will end up urging the Federal Trade Commission to study the impact of movie and video game violence on real-life violence, a topic which of course has been studied many times before. My guess is that it will not amount to much.

But that doesn’t mean Congress can’t put any pressure on Hollywood. They can hold Congressional hearings and require industry leaders to come to DC and testify. This might rouse public support. They can still introduce a bill that gives them regulatory authority over the movies. Such a bill would likely be struck down as unconstitutional, but it is another way to draw attention to the issue. The biggest carrot and stick that they have is the massive tax breaks that they offer to Hollywood studios for filming in the United States. As we have previously discussed in this space, it is unlikely that these breaks actually affect whether a film is shot in the United States or not. But they do give multi-million dollar taxpayer gifts to studios that were already planning on shooting here. This seems like a good incentive for Congress to work with, and this is a great negotiating point for Congress to use on the industry. If they want serious self-regulatory action like a tougher movie ratings system, they could use these tax breaks in the negotiations.

But will they do these things? I doubt it. Hollywood may seem like an easy target, but just one of the six studios that the Motion Picture Association of America represents contributes more to political campaigns than the entire NRA. Hollywood remains a powerful entity on Capitol Hill, which will make it difficult for Congress to even dangle their feet in the water of industry regulation. It’s too bad. The gun violence crisis is a multi-faceted problem that requires a holistic solution. While no reasonable person would argue that movie violence is the singular cause of real-life gun violence, almost everyone agrees that our violent culture is the culprit, and the movies and video games are either a contributor to or expression of it. They need to be a meaningful part of this discussion.

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